No.

IN THE

Supreme Court of the United States

_______________ JOHN M. CORBOY ET AL., Petitioners, v. DAVID M. LOUIE, ET AL., _______________ Respondents.

On Petition For A Writ Of Certiorari To The Supreme Court of Hawaii

_______________
PETITION FOR A WRIT OF CERTIORARI

_______________

H. WILLIAM BURGESS 2299C ROUND TOP DRIVE HONOLULU, HAWAII 96822 (808) 947-3234 hwburgess@hawaii.rr.com

ROY T. ENGLERT, JR. Counsel of Record MARK T. STANCIL SARAH R. RIBSTEIN ALEX POTAPOV ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER LLP 1801 K Street, NW Washington, D.C. 20006 (202) 775-4500 renglert@robbinsrussell.com

Counsel for Petitioners

QUESTION PRESENTED In Rice v. Cayetano, 528 U.S. 495 (2000), this Court held that a state classification of voters according to whether they are any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778 was an impermissible racial classification under the Fifteenth Amendment. Respondents have employed the same classification to determine whether a taxpayer is eligible for certain long-term leases that entitle lessees to significant tax exemptions. No equivalent exemption is available to petitioners because they do not fall within that racial classification. Petitioners paid their taxes under protest and then sought refunds from their respective counties on the ground that their tax bills resulted from a racial classification inconsistent with the Constitution. The Hawaii courts declined to apply Rice or subject the classification to strict scrutiny. The question presented here is: Whether the Hawaii courts erred in failing to recognize that petitioners have standing to seek a refund of their own taxes and that the Equal Protection Clause precludes a State or municipality from creating tax exemptions that are available only to members of a certain race.

ii RULE 14.1(B) AND 29.4(B) STATEMENT Petitioners are John M. Corboy, Stephen Garo Aghjayan, Garry P. Smith, Earl F. Arakaki, and J. William Sanborn. Respondents are David M. Louie, in his official capacity as Attorney General of the State of Hawaii; the State of Hawaii; the County of Maui; the County of Kauai; the City and County of Honolulu; and the County of Hawaii. This case draws into question the constitutionality of the Hawaiian Homes Commission Act, which was originally an Act of Congress, and arguably draws into question the constitutionality of Section 4 of the Hawaii Admission Act, an Act of Congress. Neither the United States nor any federal department, office, agency, officer, or employee is a party. Title 28 U.S.C. 2403(a) may apply. This petition for a writ of certiorari is being served on the Solicitor General.

iii TABLE OF CONTENTS Page QUESTION PRESENTED...........................................i RULE 14.1(B) AND 29.4(B) STATEMENT............... ii TABLE OF AUTHORITIES........................................v OPINIONS BELOW....................................................1 JURISDICTION ..........................................................1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...................................1 STATEMENT ..............................................................2 A. BACKGROUND...................................................3 B. PROCEEDINGS BELOW ......................................7 REASONS FOR GRANTING THE PETITION .......10 I. A TAXATION SCHEME FAVORING NATIVE HAWAIIANS IS AN EXPLICITLY RACIAL CLASSIFICATION WARRANTING STRICT SCRUTINY .............................................................12 A. AWARDING FAVORABLE TAX TREATMENT TO NATIVE HAWAIIANS IS IRRECONCILABLE WITH RICE V. CAYETANO ..................13 B. MORTON V. MANCARI DOES NOT SHIELD THE EXEMPTION FROM STRICT SCRUTINY .......................................................16 II. THE QUESTION PRESENTED IS IMPORTANT ..........18 III. THERE IS NO OBSTACLE TO REACHING THE MERITS .................................................................20 A. THE STATE COURTS STANDING RULING IS NOT AN INDEPENDENT AND ADEQUATE STATE GROUND SUPPORTING THE DECISION BELOW ...................................20

iv TABLE OF CONTENTSCONTINUED Page B. THE ABSENCE OF THE UNITED STATES AS A PARTY IS NOT AN OBSTACLE TO REACHING THE MERITS .................................26 CONCLUSION ..........................................................30 APPENDIX A: Opinion of the Supreme Court of Hawaii (April 27, 2011)..................................1a APPENDIX B: Order of the Supreme Court of Hawaii Denying Reconsideration (May 18, 2011) .................................................................75a APPENDIX C: Final Judgment of the Tax Appeals Court of Hawaii (August 7, 2009)......79a APPENDIX D: Hawaii Constitution Article XII, 1-3 .........................................................85a APPENDIX E: Hawaii Homes Commission Act 207, 208 .......................................................89a APPENDIX F: Hawaii Admission Act 4 ..............98a

v TABLE OF AUTHORITIES Page(s) CASES Abie State Bank v. Weaver, 282 U.S. 765 (1931) ....................................................................21 Adarand Constructors, Inc., v. Pea, 515 U.S. 200 (1995) .............................................3, 13, 16, 19 Ake v. Oklahoma, 470 U.S. 68 (1985) .......................21 Akinaka v. Disciplinary Bd. of the Hawaii Supreme Court, 91 Haw. 51 (1999) .....................24 Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959) .............................................................21 American Fedn of Govt Employees v. United States, 330 F.3d 513 (D.C. Cir. 2003) ..................19 Arakaki v. Lingle, 477 F.3d 1048 (9th Cir. 2007) ...............................................................26, 27 California v. Grace Brethren Church, 457 U.S. 393 (1982) .............................................................27 Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003) ...........................................................9, 26, 27 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) .......................................................12, 13 Costarelli v. Massachusetts, 421 U.S. 193 (1975) ....................................................................21 Felder v. Casey, 487 U.S. 131 (1988) ........................25 Gomillion v. Lightfoot, 364 U.S. 339 (1960) .............15 Gratz v. Bollinger, 539 U.S. 244 (2003)....................12 Guinn v. United States, 238 U.S. 347 (1915) ...........16

vi TABLE OF AUTHORITIESCONTINUED Page(s) Hawaiis Thousand Friends v. Anderson, 70 Haw. 276 (1989) .............................................10, 24 Haywood v. Drown, 129 S. Ct. 2108 (2009)..............25 Hillside Dairy Inc. v. Lyons, 539 U.S. 59 (2003) ....................................................................22 Hirabayashi v. United States, 320 U.S. 81 (1943) ....................................................................10 Hoohuli v. Ariyoshi, 631 F. Supp. 1153 (D. Haw. 1986) ...........................................................20 Howlett v. Rose, 496 U.S. 356 (1990) ........................25 Iuli v. Fasi, 62 Haw. 180 (1980)..........................10, 24 Kahawaiolaa v. Norton, 386 F.3d 1271 (9th Cir. 2004)..............................................................19 Keaukaha-Panaewa Community Assn v. Hawaiian Homes Commn, 588 F.2d 1216 (9th Cir. 1978) ........................................................6 Lawrence v. State Tax Commn, 286 U.S. 276 (1932) ..............................................................20, 21 Lee v. Kemna, 534 U.S. 362 (2002) ...........................23 Liner v. Jafco, Inc., 375 U.S. 301 (1964) ..................21 Louisiana v. United States, 380 U.S. 145 (1965) .............................................................. 15-16 McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18 (1990).............................25 Michigan v. Long, 463 U.S. 1032 (1983) ..................27 Morton v. Mancari, 417 U.S. 535 (1974) ............16, 17

vii TABLE OF AUTHORITIESCONTINUED Page(s) NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) .............................................................23 Orr v. Orr, 440 U.S. 268 (1979) ................................26 Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) ..............................................................12, 14 Rice v. Cayetano, 528 U.S. 495 (2000) .............. passim Shaw v. Reno, 509 U.S. 630 (1993).....................18, 19 Sierra Club v. Dept of Transp., 115 Haw. 299 (2007) ....................................................................25 St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772 (1981) .....................27 Stop the Beach Renourishment, Inc. v. Florida Dept of Envtl. Protection, 130 S. Ct. 2592 (2010) ....................................................................23 Terry v. Adams, 345 U.S. 461 (1953)........................16 Tonya K. ex rel. Diane K. v. Bd. of Educ., 847 F.2d 1243 (7th Cir. 1988).....................................28 U.S. Air Tour Assn v. FAA, 298 F.3d 997 (D.C. Cir. 2002)..............................................................19 United States v. Antelope, 430 U.S. 641 (1977)........17 Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252 (1977)...........................15 Wallach v. Lieberman, 366 F.2d 254 (2d Cir. 1966) .....................................................................28 Ward v. Commrs of Love Cnty., 253 U.S. 17 (1920) ....................................................................23

viii TABLE OF AUTHORITIESCONTINUED Page(s) Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997) ...............................................................19, 20 Xerox Corp. v. Harris County, 459 U.S. 145 (1982) ....................................................................21 Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997)..........28 CONSTITUTION, STATUTES, AND ORDINANCES U.S. CONST. Amend. XIV, 1......................................1 U.S. CONST. Art. I, 8, Cl. 3......................................17 U.S. CONST. Art. II, 2, Cl. 2 ....................................17 28 U.S.C. 1257(a)......................................................1 28 U.S.C. 1341 ........................................................25 28 U.S.C. 2403(a)............................................... ii, 28 42 U.S.C. 1983 ..........................................................7 Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), reprinted in 1 HAW. REV. STAT. 135 (2009) ............................ ii, 1, 6, 7, 10, 26 Hawaiian Homes Commission Act, 1920, Act of July 9, 1921 (HHCA), Pub. L. 67-34, 42 Stat. 108, reprinted in 1 HAW. REV. STAT. 261 (2009) ..................................................... passim Hawaiian Organic Act, Act of Apr. 30, 1900, ch. 339, 91, 31 Stat. 159 ......................................4 Newlands Joint Resolution, J. Res. 55, 55th Cong., 2d Sess., 30 Stat. 750..................................4 HAW. CONST. Art. VIII, 3 ..........................................5

ix TABLE OF AUTHORITIESCONTINUED Page(s) HAW. CONST. Art. XII, 1........................................1, 6 HAW. CONST. Art. XII, 2........................................1, 6 HAW. CONST. Art. XII, 3........................................1, 6 Hawaii County Code 19-89 ......................................6 Hawaii County Code 19-90(e) ..................................6 Honolulu Rev. Ordinances 8-10.23 ..........................6 Kauai County Code 5A-11.23(a) ..............................6 Maui County Code 3.48.555 .....................................6 RULES Fed. R. App. P. 44(a) .................................................28 Fed. R. Civ. P. 5.1......................................................28 OTHER AUTHORITIES Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of the Native Hawaiians, 106 YALE L.J. 537 (1996) ................................................................4, 17 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE (2d ed. 1996) .............................21

PETITION FOR A WRIT OF CERTIORARI OPINIONS BELOW The opinion of the Hawaii Supreme Court (App., infra, 1a-74a) is not yet published in Wests Hawaii Reports and the Pacific Reporter. The order of the Hawaii Supreme Court denying reconsideration (App., infra, 75a-78a) is reported at 251 P.3d 601 (Table). The Hawaii Tax Appeals Court order granting respondents motion for summary judgment (App., infra, 79a-84a) is unpublished. JURISDICTION The Hawaii Supreme Court issued its decision on April 27, 2011, and denied reconsideration on May 18, 2011. App., infra, 75a. On August 1, 2011, Justice Kennedy extended the time for filing this petition to September 15, 2011. This Courts jurisdiction is invoked under 28 U.S.C. 1257(a). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Equal Protection Clause of the Fourteenth Amendment provides: [N]or shall any State * * * deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST. Amend. XIV, 1. Relevant provisions of the Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), reprinted in 1 HAW. REV. STAT. 135 (2009); the Hawaii Constitution, Article XII, Sections 1, 2, and 3; and the Hawaiian Homes Commission Act, 1920, Act of July 9, 1921 (HHCA), Pub. L. 67-34, 42 Stat. 108, reprinted in 1 HAW. REV. STAT. 261 (2009), are reproduced at App., infra, 85a-99a.

2 STATEMENT This case involves an explicitly racial classification. Yet neither court below subjected the racial classification to any level of constitutional scrutiny. Instead, they pretended that the case does not involve a racial classification. One court held that the only relevant distinction is a nonracial onebetween lessees and others even though eligibility to be a lessee is limited by an explicitly racial classification. The other court, the state supreme court, held that petitioners lack standing to seek a refund of their own tax payments. If the racial classification at issue involved African Americans and Caucasians, those arguments would likely have been laughed out of court. They should be taken no more seriously just because this case involves native Hawaiians. See Rice v. Cayetano, 528 U.S. 495 (2000). The Hawaii Supreme Courts maneuvering is perhaps understandable policy questions regarding the treatment of Hawaiis aboriginal inhabitants and their descendants are often controversialbut it presents no obstacle to this Courts review. Indeed, the absence of full judicial review makes it all the more imperative that this Court determine whether Hawaiis use of an explicitly racial taxation scheme passes constitutional muster. This Court should grant certiorari to confirm that the same form of racial discrimination held to violate the Fifteenth Amendment in Rice v. Cayetano likewise violates the Fourteenth Amendment, and that the Hawaii courts cannot insulate Hawaiis clear constitutional violations from federal review.

3 A. Background 1. Petitioners are Hawaiian citizens and municipal taxpayers challenging laws that discriminate against them on the basis of their race. Hawaiis constitution and the Hawaiian Homes Commission Act (HHCA) make native Hawaiians eligible to hold homestead leases, whichunlike property held by Hawaiian citizens who do not meet that racial definitionare exempt from property taxes. Because petitioners do not possess a sufficient quantum of the blood of the races required by the HHCA, they are categorically ineligible for those valuable tax benefits. Hawaiian Homes Commission Act, 1920, Act of July 9, 1921 (HHCA), Pub. L. 67-34, ch. 42, 201(a)(7), 42 Stat. 108, reprinted in 1 HAW. REV. STAT. 261 (2009). As this Court made clear in Rice v. Cayetano, however, discrimination in favor of native Hawaiians is a purely racial classification. All such classifications must face strict scrutiny under the Fourteenth Amendments equal protection guarantee. Adarand Constructors, Inc. v. Pea, 515 U.S. 200, 227 (1995). The Hawaii Supreme Court avoided striking down this classification scheme by refusing to address the merits of petitioners constitutional challenge. That court dismissed petitioners challenge on standing grounds because they had not requested homestead leasesa benefit for which they are categorically ineligible because they do not meet the statutes racial definition of native Hawaiian. Petitioners took the only practically available avenue for challenging the unconstitutional tax scheme: They paid their taxes under protest and filed suit to challenge the States and counties decision to grant tax exemptions by racial preference.

4 2. Hawaiis native people were mostly of Polynesian ancestry; Westerners first arrived when Captain Cook landed on the islands in 1778. Rice, 528 U.S. at 500. In 1810, King Kamehameha I, with Western aid, unified the islands into a single monarchy for the first time. Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of the Native Hawaiians, 106 YALE L.J. 537, 549 (1996). Over the course of the nineteenth century, significant numbers of settlers and missionaries from the West and Asia came to the islands. Id. at 550. Between 1826 and 1887, the United States entered into several treaties and conventions with successive Hawaiian monarchs, and the United States became increasingly involved in the affairs of the Hawaiian kingdom. Rice, 528 U.S. at 504. The United States formally annexed Hawaii in 1898 via the Newlands Joint Resolution. Upon its annexation, Hawaii ceded to the United States 1,800,000 acres of land, which were to be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes. J. Res. 55, 55th Cong., 2d Sess., 30 Stat. 750. In 1900, Congress passed the Hawaiian Organic Act, establishing a territorial government in Hawaii. The Organic Act placed the ceded lands into the possession, use, and control of the government of the Territory of Hawaii * * * until otherwise provided for by Congress. Act of Apr. 30, 1900, ch. 339, 91, 31 Stat. 141, 159. Twenty-one years later, Congress enacted the HHCA. The HHCA set aside approximately 200,000 acres of the ceded lands for the use of native Hawaiians and created the Department of Hawaiian Home Lands (DHHL) to manage those lands. HHCA 202, 203.

5 The HHCA provides for long-term homestead leaseslasting for 99 years and renewable for an additional 100 yearsfor only $1 per year. Those leases, however, are available only to native Hawaiian[s], which the statute defines in explicitly racial terms to mean any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778. HHCA 201(a)(7). Other provisions of the HHCA reinforce the proscription that only those with a certain amount of native Hawaiian blood may benefit from the homestead leases: lessees are prohibited from transferring their leases to persons who are not native Hawaiians, and on a lessees death only native Hawaiians or close relatives who are at least onequarter Hawaiian may succeed to the lease. Id. 208(5), 209. The HHCA gives homestead lessees preferential tax treatment over other Hawaiian property holders. The HHCA declares that an original lessee is exempt from all taxes for the first seven years of the lease. HHCA 208(8). Under HHCA 208(7), homestead lessees are supposed to bear full tax burdens after the initial seven-year lease period. In 1978, Hawaiis constitution was amended to give counties the power to tax real property. HAW. CONST. Art. VIII, 3. Each of Hawaiis four counties, with individual variations, has relieved homestead lessees of their tax burden for an indefinite period, thus extending the racially based tax break conferred by the HHCA. The City and County of Honolulu exempts homestead lessees from all taxes except for $100 minimum per year. Kauai County is apparently the same except that the minimum is $25 per year. Maui County is apparently the same except that the minimum is $150 per year. Hawaii County

6 exempts homestead land and, if certain filing requirements are met, allows an exemption for improvements as well. See Honolulu Rev. Ordinances 8-10.23; Maui County Code 3.48.555; Kauai County Code 5A-11.23(a); Hawaii County Code 19-89, 19-90(e). When Hawaii entered statehood in 1959, Section 4 of the Hawaii Admission Act required Hawaii to adopt the HHCA in its constitution. Act of Mar. 18, 1959, Pub. L. No. 86-3, 4, 73 Stat. 4, 5. The Admission Act also specifically prohibited Hawaii from making changes in the qualifications of homestead lessees without the consent of the United States. Ibid. Upon Hawaiis admission, the HHCA was removed from the U.S. Code and adopted by reference in Hawaiis constitution. See HAW. CONST. Art. XII, 1, 2, 3; Keaukaha-Panaewa Community Assn v. Hawaiian Homes Commn, 588 F.2d 1216, 1226-1227 (9th Cir. 1978). Because of this statutory scheme, only native Hawaiians are granted homestead leases, and those who receive such leases pay little, if any, property taxes, thus contributing virtually nothing to pay for their counties services and infrastructure. By contrast, petitioners and other Hawaiian citizens who do not meet the HHCAs racial criteria enjoy no such benefit. Petitioners and thousands of other similarly situated Hawaiian property holders thus pay more in annual property taxes than homestead lessees pay. (For example, in Honolulu for year 2009-2010 the City and County of Honolulu Real Property Tax Administrator projected an average residential real property tax assessment of $1817 per parcel, but homestead lessees were assessed only $100 per parcel.) Because of the racial classification and the

7 tax break, favored native Hawaiians share of the economic burdens of county government is borne by petitioners and similarly situated taxpayers, not by those native Hawaiians who hold homestead leases. B. Proceedings Below Petitioners paid their property taxes under protest and filed suits in the Hawaii Tax Appeal Court. The complaints alleged violations of the Constitution and civil rights laws of the United States, including the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. 1983. Petitioners argued that, in the absence of equivalent exemptions for petitioners and other similarly situated municipal taxpayers, the homestead lease exemptions of their respective counties violate the Equal Protection Clause of the Fourteenth Amendment. Petitioners complaints also alleged, As to the HHCA, the Compact in 4 of the 1959 Admission Act, and Art. XII of the Hawaii Constitution, in the absence of equivalent homestead leases and benefits for every Hawaii citizen without regard to race or ancestry, such provisions also violate the Equal Protection Clause and other civil rights laws of the United States. Because the cases called into question the constitutionality of certain Hawaii statutes and of the HHCA (which was originally a federal statute), petitioners gave notice to the Attorney General of the State of Hawaii and the Attorney General of the United States. The State of Hawaii intervened, but the United States did not. Petitioners suits sought exemptions from real property taxes equivalent to those given to native Hawaiians holding homestead leases, and tax refunds reflecting the difference between what petitioners paid and what they would have paid if they

8 had received the same exemptions as the homestead lessees, or equivalent exemptions. Petitioners also sought corresponding declaratory and injunctive relief. Respondents defended the race-based exemptions by arguing that [n]o suspect classification is involved in the homestead exemption because the tax exemptions are not based upon whether a taxpayer is native Hawaiian or not, but rather whether the taxpayer is a homestead lessee of HHCA land. Mem. in Support of State Mot. for S.J. at 2. Because the tax exemption is not claimed by every native Hawaiian some native Hawaiians choose not to seek a homestead leaserespondents contended that it was irrelevant that only racially native Hawaiians could obtain a lease and the corresponding tax exemption. Ibid. Accordingly, respondents claimed, the classification was subject only to rational-basis review. Respondents also argued that petitioners lacked standing because they had not proven that they actually desired homestead leases. Mem. in Support of State Mot. for S.J. at 4-5. Respondents contended, in effect, that the only reason petitioners were denied the exemption was that petitioners were not leaseholders. Thus, respondents concluded, petitioners asserted injurytheir tax burdencould not be traced to the native Hawaiian racial classification. Ibid. The tax appeal court granted respondents motion for summary judgment with no written opinion. App., infra, 79a-84a. The court accepted respondents contention that discrimination in favor of native Hawaiian homestead lessees was not a suspect classification, and therefore was subject only to rational-basis review. See App., infra, 32a-33a.

9 The court then stated that there was no evidence refuting the States proffered rational bases for the classification. See App., infra, 33a. The Hawaii Supreme Court vacated the tax appeal courts judgment and remanded with instructions to dismiss petitioners complaint for lack of jurisdiction. App., infra, 56a. The court did not explicitly reach the constitutionality of the tax exemption. Instead, it accepted respondents assertion that petitioners lacked standing because petitioners did not seek homestead leasesfor which, it was undisputed, petitioners were ineligible because of their race. App., infra, 50a-51a n.32. To reach that result, the court construe[d] petitioners challenge to the tax exemption afforded to homestead lessees as, in fact, a challenge to [the] lease eligibility provisions. App., infra, 41a. The court relied on Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003), in which the court upheld a plaintiffs standing to challenge a similar racial classification because a person need only state a desire to obtain a lease to demonstrate injury in fact. 342 F.3d at 943. The Hawaii Supreme Court concluded, however, that petitioners failure to state a desire to obtain a lease meant that they had not suffered any actual injuryeven though they had paid taxes and were seeking a refund. App., infra, 49a. As the Hawaii Supreme Court saw things, petitioners claim that they suffered injury by paying far more in property taxes than native Hawaiian lessees merely amount[ed] to speculation. App., infra, 50a. Justice Acoba concurred in the result but disagreed with the majoritys standing rationale. He rejected the majoritys recasting of petitioners claim as a challenge to the eligibility criteria for homestead

10 leases rather than a challenge to the corresponding discriminatory tax exemption. App., infra, 61a. The disparate tax burden, he concluded, established a concrete injury-in-fact sufficient to confer standing under the majoritys standing test. App., infra, 72a n.9. He also emphasized that petitioners had general taxpayer standing under longstanding Hawaii law. App., infra, 63a-64a & n.4 (citing Hawaiis Thousand Friends v. Anderson, 70 Haw. 276, 277 (1989); Iuli v. Fasi, 62 Haw. 180 (1980)). Justice Acoba ultimately determined, however, that he need not confront the merits of petitioners equal protection challenge. Because the federal Admission Act mandated Hawaiis original enactment of the tax exemption, he reasoned, petitioners challenge was essentially a challenge to the Admission Act. App., infra, 67a-68a. Because petitioners challenged the constitutionality of a federal law, he concluded, the United States was an indispensable party to the lawsuit. App., infra, 69a-70a. Without further explanation, Justice Acoba stated that remanding for dismissal was the proper remedy and therefore concurred in the result reached by the majority opinion. App., infra, 69a. REASONS FOR GRANTING THE PETITION Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. Hirabayashi v. United States, 320 U.S. 81, 100 (1943), quoted in Rice v. Cayetano, 528 U.S. 495, 517 (2000). Hawaiis taxation scheme directly offends that constitutional principle by awarding significant governmental benefits based expressly on the quantum of the blood of [certain] races coursing through a citizens veins. By refusing

11 to subject this discriminatory regime to strict scrutiny, the decisions below directly violate this Courts holding in Rice v. Cayetano that native Hawaiian is a purely racial classification and scores of other decisions that have properly confined the use of such classifications to only the most extraordinary circumstances. This Courts review is urgently needed to restore the equal protection rights of petitioners and hundreds of thousands of other Hawaiian citizens who bear disproportionate tax burdens because they do not satisfy the HHCAs racial definition. The Hawaii Supreme Courts efforts to dodge the merits of petitioners constitutional challenge are no obstaclejurisdictional or prudentialto this Courts review. As for the majoritys standing analysisthat petitioners should have asked for homestead leasesit is inextricably bound up with the merits of the petitioners equal protection challenge. Petitioners did not ask for those leases because it is undisputed that they are racially ineligible for them. Petitioners appropriately challenged the concrete injury they have suffered as a result of the HHCA: property taxes that they are forced to pay but others, by virtue of their race, are not. What is more, the federal Tax Injunction Act required petitioners to bring that challenge in state court, so the decision below leaves petitioners with no avenue other than review by this Court for protection of their federal rights. Such maneuvering by state courts cannot shield federal constitutional issues from this Courts review. Justice Acoba correctly rejected the majoritys strained standing analysis, but his alternative view, that the case should be dismissed because the United States is not a party, is indefensible. The U.S. Code

12 and the Federal Rules of Civil Procedure require notice to the United States when a federal statute is challenged on constitutional grounds, and such notice was given here. A challenge to a federal statute does not become nonjusticiable simply because the United States after proper notice chooses not to intervene. The constitutional issue is thus squarely presented. It is also tremendously important. It affects petitioners and other Hawaiian citizens who pay constitutionally impermissible taxes. More generally, it affects all Americans who depend on the Equal Protection Clause to prevent politically favored racial classes from receiving preferential treatment. This Courts review is urgently needed. I. A TAXATION SCHEME FAVORING NATIVE HAWAIIANS IS AN EXPLICITLY RACIAL CLASSIFICATION WARRANTING STRICT SCRUTINY A State may discriminate against individuals on the basis of their race only if its actions satisfy strict scrutiny. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 720 (2007). The discrimination can be upheld only if it is narrowly tailored to address a compelling government interest. Ibid. Such a searching standard is necessary because racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification. Ibid. (quoting Gratz v. Bollinger, 539 U.S. 244, 270 (2003)). Even classifications that are alleged to be benign or remedial are subject to the highest level of scrutiny. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989). No matter their apparent pur-

13 pose, [c]lassifications based on race carry a danger of stigmatic harm. Ibid. [G]ood intentions cannot protect a racial classification from exacting scrutiny because any individual suffers an injury when he or she is disadvantaged by the government because of his or her race, whatever that race may be. Adarand Constructors, Inc., v. Pea, 515 U.S. 200, 230, 240 (1995). The HHCAs preferential treatment of native Hawaiians is just such a racial classification. Eleven years ago, this Court declared in Rice v. Cayetano that another Hawaii statute discriminating in favor of native Hawaiiansdefined by a citizens possession of the blood of the racesis exactly what it sounds like: a racial classification that is neither subtle nor indirect. 528 U.S. at 514. The HHCA thus draws precisely the same distinction this Court rejected, and yet it remains the law of Hawaii. That is plainly wrong. A. Awarding Favorable Tax Treatment To Native Hawaiians Is Irreconcilable With Rice v. Cayetano This Court has unequivocally held that the native Hawaiian classification at issue in this casethat is, the class of individuals who are any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778 is a racial classification. Rice, 528 U.S. at 516. In Rice, the plaintiff challenged a state law allowing only Hawaiians and native Hawaiiansthe latter defined exactly as the class in this case is defined, and the former defined as any descendant of people inhabiting the Hawaiian Islands in 1778to vote in certain state elections. 528 U.S. at 499. This Court

14 struck down the voting classification under the Fifteenth Amendment, holding that the statutes reference to [a]ncestry was a transparent proxy for race. Id. at 514. The challenged voting scheme was neither subtle nor indirect, ibid., the Court held, because it targeted only a select group of inhabitants [that] shared common physical characteristics and had a common culture. Id. at 514-515. The express racial purpose and * * * actual effects of the classification, the Court squarely held, rendered it impermissible. Id. at 517. Here, the classification itself (native Hawaiians), its purpose (to treat the early Hawaiians as a distinct people, commanding their own recognition and respect, Rice, 528 U.S. at 515), and its effect (to afford a benefit only to members of a certain racial class) are all identical to those at issue in Rice. After Rice, it is simply inescapable that this classification is racial. The Fourteenth Amendment therefore demands that it be subjected to strict scrutiny. Parents Involved, 551 U.S. at 720. Respondents claims to the contrary are meritless. For starters, respondents contention that the tax exemption depends only on a taxpayers status as a homestead lessee status and not on race, Mem. in Support of State Mot. for S.J. at 2-3, ignores the undisputed fact that petitioners are statutorily ineligible to hold such leases because they do not meet the HCHAs explicitly racial definition of native Hawaiian. Suppose a public university offered a Special Scholars program, for which only white students were eligible, and that all Special Scholars were awarded a full scholarship. Could university officials really suggest that the scholarships were awarded on racially neutral grounds? Of course not. But that is

15 precisely the tortured logic respondents cling to here by maintaining that tax exemptions go to homestead lessees without regard to their race. That rationale is as ridiculous as it sounds, particularly considering that the Court rejected the same argument in Rice. There, state officials urged that the voting restriction was based on [a]ncestry, not race. 528 U.S. at 514. The Court promptly dispatched that argument, noting that [a]ncestry can be a proxy for race, and holding that the native Hawaiian classification was exactly that. Id. at 514, 516. Adding the word lessee does not change anything where only native Hawaiians can be lessees. It is no answer to suggest, as respondents have, that not all native Hawaiians benefit from the taxation scheme because some do not hold homestead leases. See Mem. in Support of State Mot. for S.J. at 3 (contending that the classification is race neutral because some native Hawaiians do not receive the tax exemption). This Court rejected the exact same argument in Rice, holding that the fact that a class defined by ancestry does not include all members of the race is not enough to make the classification race neutral. 528 U.S. at 516-517. Respondents fervent defense of this statutory scheme simply ignores the explicit holdings of Rice. Even facially neutral measures may be unconstitutional because they are discriminatory in purpose and effect. Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-267 (1977); see also Gomillion v. Lightfoot, 364 U.S. 339 (1960) (using residence as a proxy for race in voting districting); Louisiana v. United States, 380 U.S. 145 (1965) (using interpretation tests as a proxy for race

16 in voting regulations); Terry v. Adams, 345 U.S. 461 (1953) (using a white primary); Guinn v. United States, 238 U.S. 347 (1915) (using an ancestry-based grandfather clause). Here, the lessees must be native Hawaiian, which is defined in explicitly racial terms according to how much blood of [certain] races a citizen possesses. If such a classification is indirect, its indirect nature offers only the tiniest of fig leaves and does not protect the classification from strict scrutiny. See Adarand, 515 U.S. at 212-213 (holding that statutory scheme was subject to strict scrutiny when preference was provided to disadvantaged individuals, but members of certain racial minorities were rebuttably presumed to be disadvantaged). In short, Rice ends any serious debate that awarding tax benefits only to native Hawaiians is a racial classification, plain and simple. The Equal Protection Clause thus requires that it face strict scrutiny, which it cannot possibly meet. B. Morton v. Mancari Does Not Shield The Exemption From Strict Scrutiny Respondents have also attempted to justify this taxation scheme by relying on Morton v. Mancari, 417 U.S. 535 (1974), but that case offers no refuge. In Mancari, this Court upheld against a due process challenge a federal law that gave employment preferences to Indians applying for positions at the Bureau of Indian Affairs. The Court held that, because of Congresss plenary power * * * to deal with the special problems of Indians, legislation affording special treatment to Indians was permissible as long as it was tied rationally to the fulfillment of Congress unique obligation toward the Indians.

17 417 U.S. at 555. But Mancari has no application to the HHCAs native Hawaiian classification. Mancari was expressly limited to federally recognized Indian tribes, whose special relationship with the federal government rests on Indians unique history with the federal government. Mancari, 417 U.S. at 551-552. The Court in Mancari also emphasized that the challenged distinction was political, not racial, because it was granted to Indians * * * as members of quasi-sovereign tribal entities. Id. at 553-554 & n.24. In other words, Mancaris central distinction was between tribes and nontribes, rather than Indians and non-Indians. Benjamin, supra, 106 YALE L.J. at 563; see also United States v. Antelope, 430 U.S. 641, 646 (1977). Indeed, the Court in Mancari repeatedly noted that the BIA preference was acceptable as a means to further Indian tribes self-government. 417 U.S. at 541, 543, 544 (emphasis added). And the Court recognized, id. at 552, that the Constitution directly authorized special treatment of Indian tribes in the Indian Commerce Clause, Art. I, 8, Cl. 3, and the Treaty Clause, Art. II, 2, Cl. 2. The HHCAs racial classification shares none of those characteristics. Native Hawaiians are not federally recognized as quasi-sovereign entities. Nor do they share the same historical relationship with the United States as do federally recognized Indian tribes. Indians remained in political, self-governing organizations throughout their relationship with the U.S. government and even after becoming part of the United States, but native Hawaiians did not. See Benjamin, supra, 106 YALE L.J. at 582-583.

18 Moreover, the native Hawaiian definition itself is purely racialthere is nothing political about it. That much was definitively resolved in Rice. 528 U.S. at 515; see also id. at 519-520 (emphasizing ways in which the classification at issue in Mancari, unlike any distinction at issue under the HHCA, was political rather than racial). Finally, neither of the constitutional provisions relied on in Mancari concerns native Hawaiians. Thus, unlike the preference upheld in Mancari, preferential treatment of native Hawaiians has no independent constitutional basis. * * * * * The merits of petitioners constitutional argument do not present a difficult questionyet petitioners lost in both courts below. This Court should correct the error. As we next show, the error is important, and there is no obstacle to this Courts review. II. THE QUESTION PRESENTED IS IMPORTANT If the decision below is left undisturbed, petitioners and hundreds of thousands of Hawaiian taxpayers will continue to suffer under an unconstitutionally discriminatory scheme for which they have no redress. Eliminating government-mandated racial discrimination is, without question, fundamentally important. Because [r]acial classifications of any sort pose the risk of lasting harm to our society, Shaw v. Reno, 509 U.S. 630, 657 (1993), this Court need not and should notwait for a split of authority in the state or lower courts before reviewing a question of such national significance. Indeed, in several of this Courts recent cases addressing state-sponsored ra-

19 cial classifications, no such split in authority existed. E.g., Rice v. Cayetano, supra; Adarand v. Pea, supra; Shaw v. Reno, supra. Respondents invocation of Mancari in defense of this racial classification only underscores the need for this Courts review. There is a substantial question as to whether Mancari remains good law after Adarand v. Pea. See Adarand, 515 U.S. at 244-245 (Stevens, J., dissenting) (contending that the majoritys logic would view the special preferences that the National Government has provided to Native Americans since 1834 as comparable to official discrimination against African Americans); Williams v. Babbitt, 115 F.3d 657, 665 (9th Cir. 1997) (Mancaris days [may be] numbered after Adarand); U.S. Air Tour Assn v. FAA, 298 F.3d 997, 1012 n.8 (D.C. Cir. 2002) (acknowledging plaintiffs argument that Adarand effectively overruled Mancari, but declining to address it because lower courts do not have the power to make that determination). And numerous lower courts have recognized the importance of Mancari, but have applied varied analyses of the case. See, e.g., Kahawaiolaa v. Norton, 386 F.3d 1271, 1272 (9th Cir. 2004) ([t]he significance of the question [of the definition of an Indian tribe] is immediately apparent from the text of the Indian Commerce Clause of the United States Constitution); id. at 1278-1279 (rejecting the argument that Rice required strict scrutiny of the Department of Interiors regulations excluding native Hawaiians from obtaining federally recognized tribal status); American Fedn of Govt Employees v. United States, 330 F.3d 513, 519-521 (D.C. Cir. 2003) (rejecting the argument that Adarand requires strict scrutiny of a racial classification related to tribal economic develop-

20 ment); Williams v. Babbitt, 115 F.3d 657, 664 (9th Cir. 1997) (suggesting that strict scrutiny applies to all Native American classifications that do not relate to native land, tribal or communal status, or culture); Hoohuli v. Ariyoshi, 631 F. Supp. 1153, 1159 n.22 (D. Haw. 1986) (noting in dicta that if plaintiffs were Caucasi[a]ns challenging appropriations to both Hawaiians and native Hawaiians, strict scrutiny might be the appropriate standard). This Court should grant review to clarify that it meant what it said in Rice, and that Mancari does not protect racial classifications like the one here from strict scrutiny. III. THERE IS NO OBSTACLE TO REACHING THE MERITS

In Lawrence v. State Tax Commission, 286 U.S. 276, 282 (1932), this Court observed that a partys federal constitutional rights are denied as well by the refusal of the state court to decide the question, as by an erroneous decision of it. That is precisely what happened in this case. The Hawaii Supreme Court went to great lengths to avoid reaching the merits of petitioners constitutional challenge. None of those efforts shields Hawaiis taxation scheme from this Courts review. A. The State Courts Standing Ruling Is Not An Independent And Adequate State Ground Supporting The Decision Below 1. The Supreme Court of Hawaii purported to address standing as a question of state law. But petitioners challenged the racially discriminatory tax scheme as a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Standing to bring such a challenge is a federal question, not a question of state law. See generally

21 16B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE 4023, at 354 (2d ed. 1996) ([f]ederal standards may require that a state court recognize standing to assert a right that state courts are obliged to protect). State-court decisions are not shielded from review by this Court if they are interwoven with the federal merits, Abie State Bank v. Weaver, 282 U.S. 765, 773 (1931), or based on an antecedent ruling whether implicit or expliciton federal law, Ake v. Oklahoma, 470 U.S. 68, 74-75 (1985). Thus, in Xerox Corp. v. Harris County, 459 U.S. 145, 149 (1982), this Court reviewed a state courts state-law judgment because an indispensable predicate to an award of judgment * * * was a determination that the taxes at issue were permissible under the United States Constitution. This Court has on many occasions reviewed cases raising questions of justiciability that are ostensibly decided on state-law grounds but that are actually intertwined with the merits of the federal question presented. For example, in Costarelli v. Massachusetts, 421 U.S. 193, 197 (1975), this Court held that whether a federal constitutional claim was moot is a matter of federal constitutional law, for determination * * * ultimately by this Court. In Liner v. Jafco, Inc., 375 U.S. 301, 304 (1964), this Court held that the question of mootness is itself a question of federal law upon which we must pronounce final judgment, and reviewed a state courts mootness ruling and then addressed the merits of the federal claim. Accord Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959). In Lawrence v. State Tax Commn, 286 U.S. at 282, this Court addressed the merits of a federal challenge to a tax after a Mississippi court had held, on state-law grounds, that it was unnecessary to reach the merits because

22 the plaintiff would be liable for the tax whether or not the challenged provision was upheld. Here, the Hawaii Supreme Courts belief that petitioners cannot complain about the HHCAs scheme if they have not requested homestead leases itself rests on an implicit assumption that the tax benefits are awarded on the basis of lessee status, not on the basis of race. But that is just another way of embracing the erroneous merits argument that a transparent proxy for race (here, lessee status) is the real determining factor and would thus have to be the source of petitioners asserted injury. Cf. Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003) (reaffirming that the Privileges and Immunities Clause invalidates, at a minimum, classifications that are but proxies for differential treatment on a forbidden basis). As explained above, however, this Court has repeatedly rejected such argumentsin the context of this very same native Hawaiian classification, no less. See pp. 12-16, supra. It bears repeating that petitioners are statutorily ineligible to claim the right that the Hawaii Supreme Court claims they should have claimed in order to establish standing. This is not a scenario in which petitioners could have made a facially plausible claim to satisfy the proxy behind which respondents hide; here, the HHCA explicitly limits the award of homestead leases to native Hawaiians. Petitioners sensibly challenged the real-world injury the HHCA imposes on themracially discriminatory tax burdensrather than a related but distinct injury caused by their ineligibility for leases in the first place. Respondents cannot evade constitutional scrutiny simply because the HHCA might inflict other kinds of constitutional injuries in addition to disparate tax treatment.

23 2. Even if standing were a pure question of state law, the standing ruling in this case would not constitute an independent and adequate state ground. This Court generally does refuse to review state-court decisions that rest on purely state-law grounds, if those grounds are both independent from the federal issues in the case and adequate to support the state courts judgment. Lee v. Kemna, 534 U.S. 362, 375 (2002). But the Hawaii Supreme Courts standing rationale was neither adequate nor independent of the federal merits. Rather, it was a transparent attempt to avoid vindicating petitioners federal rights and thus is no barrier to this Courts review. State courts cannot avoid review by this Court when they put forth state-law grounds that are no more than an attempt to evade vindicating a federal right. See, e.g., NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964) (The consideration of asserted constitutional rights may not be thwarted by simple recitation that there has not been observance of a procedural rule with which there has been compliance.). Rather, to assure that there is no evasion of [this Courts] authority to review federal questions, the Court demands that the nonfederal ground of decision have fair support. Stop the Beach Renourishment, Inc. v. Florida Dept of Envtl. Protection, 130 S. Ct. 2592, 2608 (2010); see also, e.g., Ward v. Commrs of Love Cnty., 253 U.S. 17, 22 (1920) (if nonfederal grounds, plainly untenable, may be thus put forward successfully, our power to review easily may be avoided). There is nothing remotely resembling fair support for the Hawaii Supreme Courts assertion that petitioners lacked standing because they had failed to allege an injury-in-fact with regard to the HHCAs native Hawaiian ancestry qualification for homestead leases. App., infra, 42a.

24 That is because petitioners did not challenge their eligibility for inclusion in the homestead lease program. Rather, they challenged the highly favorable tax treatment afforded only to native Hawaiians under the HHCA. The Hawaii Supreme Court simply mischaracterized petitioners claim as challenging the leases themselves. A state ground of decision lacks fair support when it rests on a demonstrably false premisehere, that petitioners asked for something (inclusion in the lease program) that they quite plainly did not. Moreover, under Hawaii law petitioners quite clearly do have standing to challenge the tax exemption and the native Hawaiian classification underlying the exemption, as the concurring Justice concluded. App., infra, 63a-64a; see Hawaiis Thousand Friends v. Anderson, 70 Haw. 276, 277 (1989); Iuli v. Fasi, 62 Haw. 180 (1980). Hawaii law requires (1) a concrete injury that is actual or imminent; (2) is fairly traceable to the defendants actions; and (3) is redressable by a favorable ruling. App., infra, 43a; see also Akinaka v. Disciplinary Bd. of the Hawaii Supreme Court, 91 Haw. 51, 55 (1999). The unequal treatment petitioners experience based solely on their race is plainly not speculation, see App., infra, 50athey have paid thousands of dollars in taxes that others, because of their race, do not. The injury is fairly traceable to the native Hawaiian classification, which is the determining factor in defining who is eligible for the preferential tax treatment. And the injury is plainly redressable by either removing the exemption or providing an equivalent exemption that is available to persons other than native Hawaiians. What is more, the state defendants conceded that petitioners had standing to challenge the tax exemption directly. See Ans. Brief at 8 n.9. Because Hawaiis standing doctrine is prudential rather than

25 jurisdictional, Sierra Club v. Dept of Transp., 115 Haw. 299, 319 (2007), the court would have been able to assume the existence of standing based on the parties agreement. There is, in short, nothing other than the decision below to suggest that Hawaii standing law forecloses petitioners challenge to this preferential tax treatment. 3. In any event, the Supremacy Clause dictates that [a] States authority to organize its courts, while considerable, remains subject to the strictures of the Constitution, and this Court has therefore consistently held that state courts may not erect barriers to entertaining federal causes of action. Haywood v. Drown, 129 S. Ct. 2108, 2117 (2009). The Hawaii courts standing rationale is exactly thata barrier erected with the specific goal of avoiding a federal question. State courts simply are not free to vindicate the substantive interests underlying a state rule of decision at the expense of [a] federal right. Felder v. Casey, 487 U.S. 131, 152 (1988). This Court has repeatedly struck down such efforts. See, e.g., Howlett v. Rose, 496 U.S. 356, 369, 371 (1990) (A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of valid excuse. * * * An excuse that is inconsistent with or violates federal law is not a valid excuse.); McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18, 44-49 (1990) (a state court may not rely on state-law grounds to deny a postdeprivation remedy when a taxpayer has paid an unconstitutional tax with no predeprivation process for avoiding payment). This is the rule even when the plaintiff would have been able to vindicate his federal right in federal court. See generally Haywood, 129 S. Ct. 2108. It applies with even greater force here, where the Tax Injunction Act prevented petitioners from suing in federal court. See 28 U.S.C. 1341 (The

26 district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.). Thus, no court can review petitioners equal protection claims if the state courts refuse to do so. The Hawaii Supreme Courts standing analysis, therefore, is plainly insufficient to foreclose review in this Court. Particularly given the importance of the questions at stake, the Court should grant certiorari to reach the merits of the equal protection claim. B. The Absence Of The United States As A Party Is Not An Obstacle To Reaching The Merits The concurring justice below joined in the judgment on the ground that the United States was a required party to this action. App., infra, 60a, 69a. Justice Acoba argued that the county tax exemptions at issue were mandated by the HHCA, which, in turn, cannot be amended without the consent of the United States under Section 4 of the Admission Act. App., infra, 67a-68a. Because the exemptions are mandated by federal legislation, he concluded, any change in the classification for the exemption requires the participation of the United States, and the taxpayers complaints should be dismissed. App., infra, 68a-69a (citing Carroll v. Nakatani, 342 F.3d 934, 944 (9th Cir. 2003), and Arakaki v. Lingle, 477 F.3d 1048, 1052 (9th Cir. 2007)). That argument, which was not even raised by respondents, is not an adequate and independent state ground for at least two basic reasons. First, it was not a ground of the majoritys decision and is therefore not a bar to federal review. See Orr v. Orr, 440 U.S. 268, 275-276 (1979). Second, the concurring

27 justices conclusion was not rooted in state law, because it relied entirely on two Ninth Circuit opinions applying federal law. App., infra, 68a-69a (citing Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003); Arakaki v. Lingle, 477 F.3d 1048 (9th Cir. 2007)). In any event, any conceivable invocation of state law in the concurring Justices opinion certainly lacked the plain statement required by Michigan v. Long, 463 U.S. 1032, 1041 (1983). Furthermore, the view that the United States is an indispensable party to any action challenging a federal statute is meritless. Indeed, it has been squarely rejected by this Court. In California v. Grace Brethren Church, the Court considered whether certain state and federal statutes violate * * * the First Amendment by requiring religious schools unaffiliated with any church to pay unemployment insurance taxes. 457 U.S. 393, 396 (1982) (footnote omitted). The Court did not reach the merits, however, because it concluded that the district court lacked jurisdiction under the Tax Injunction Act, ibid., and that the constitutional claims could be addressed in the state courts, id. at 414. The Court then addressed the argument that because the Federal Government is an indispensable party to this action, and could not be compelled to submit to state-court jurisdiction, the state courts could not afford the appellees complete relief. Id. at 417 n.38. The Court explicitly rejected that view: [T]he error in this argument is its premise; as St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772 (1981), demonstrates, the Federal Government need not be a party in order for the appellees to litigate their statutory and constitutional claims. Ibid. (emphasis added).

28 Justice Acobas position also flies in the face of the procedure furnished by the U.S. Code to ensure that the United States can make its views heard on constitutional challenges to federal legislation. Title 28 U.S.C. 2403(a) (implemented by Federal Rule of Civil Procedure 5.1 and Federal Rule of Appellate Procedure 44(a)) instructs federal courts to notify the Attorney General of any case in which the constitutionality of any Act of Congress affecting the public interest is drawn in question and the United States or any agency, officer or employee thereof is not a party. The United States then has the option to intervene. Ibid. Under Justice Acobas theory, that statute is entirely nugatory, because the United States would already be a required party in any proceeding where a federal statute was challenged. But the statute presupposes that a constitutional challenge can go forward if the United States declines to intervene. Indeed, federal courts regularly resolve constitutional challenges in such circumstances. See Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir. 1997) (considering constitutional question after being assured that the Department of Justice had actual notice); Tonya K. ex rel. Diane K. v. Bd. of Educ., 847 F.2d 1243, 1247 (7th Cir. 1988) (similar); Wallach v. Lieberman, 366 F.2d 254, 257-258 (2d Cir. 1966) (resolving a constitutional question after the United States declined to intervene). In this case, the plaintiffs notified both the State of Hawaii and the United States that their claims put state and federal laws into question. The State chose to intervene, but the United States did not. A decision against intervention does not rob the courts of their ability to decide the constitutional issue.

29 Any Ninth Circuit decision to the contrary is simply indefensible. In the end, it is not difficult to understand the motivation for the justices of the state supreme court to seek grounds for avoiding the constitutional merits: They wish to avoid upsetting a politically popular program, but they realize that Rice v. Cayetano forecloses any serious defense of that program on the merits. To say that the motivation is understandable, however, is not to say that it is legitimate for a court of law. It plainly is not. Only this Court can force the courts of Hawaii to accept the plain import of Rice v. Cayetano. This Court should grant certiorari to do so.

30 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted.
H. WILLIAM BURGESS 2299C ROUND TOP DRIVE HONOLULU, HAWAII 96822 (808) 947-3234 hwburgess@hawaii.rr.com ROY T. ENGLERT, JR. Counsel of Record MARK T. STANCIL SARAH R. RIBSTEIN ALEX POTAPOV ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER LLP 1801 K Street, NW Washington, D.C. 20006 (202) 775-4500 renglert@robbinsrussell.com

Counsel for Petitioners September 15, 2011